John Bellinger, former Legal Adviser to the State Department, has an interesting op ed in the New York Times (February 14, 2010), comparing ways in which the Obama administration’s international law positions largely continue the second Bush term positions. As my Opinio Juris colleague Julian Ku observes, “The shape of U.S. foreign policy, and its policy toward international law, is not entirely the creature of the occupant of the Oval Office.”
I agree with John and Julian. It is continuity, rather than change, and continuity driven fundamentally by long term American positions that turn out to be rather less susceptible to alteration than one might have thought. The issues are far from simply the post 9-11 issues of terrorism and the war on terror, as John Bellinger notes:
In areas outside of terrorism, the Obama administration has demonstrated less commitment to international law and legal institutions than many Europeans expected. Although administration officials recently announced plans to attend the I.C.C. ten-year review conference in Uganda later this year, they have re-iterated concerns about potential I.C.C. prosecutions of U.S. soldiers and have said they will not seek Senate approval of the Rome Statute, which established the I.C.C. And in contrast to vigorous efforts by the Bush administration, the Obama administration has done nothing to implement binding decisions of the International Court of Justice that the U.S. must review the death sentences of nearly 50 Mexican nationals in U.S. state prisons.
Thorley Winston says:
Meet the new boss, same as the old boss.
Seriously though, I think a lot of people predicted early on that Obama wouldn’t turn out to be quite the “internationalist” that some had feared/hoped.
February 16, 2010, 6:56 pmConstantin says:
He can’t be, Thorley. Especially after Christmas Day. If something happens now, he’s done. That’s the most comforting thought I have as I board an airplane these days.
I bet that Taliban guy we just captured is getting roughed up real nice right about now. Barack can say whatever he wants to FireDogLake, but he likes his job and won’t want to find something else to do in three years.
February 16, 2010, 9:10 pmohwilleke says:
Obama’s room to manuever on international law is not entirely unconstrained. The issues that President George W. Bush took a stand on have developed as a result, a very partisan character.
Thus, using the treaty process, which requires two-thirds approval in the U.S. Senate, something that President Obama has never had, even including the handful of moderate Republican Senators, in a way that repudiates the policies of the administration of George W. Bush is simply not a viable option. Why would the Obama administration spend political capital to propose the Rome Statute for U.S. Senate approval only to have it face certain defeat?
Having Clinton as Secretary of State has been an excellent way to build Democratic Party unity in the wake of a divisive Presidential primary, and has been received warmly abroad, but was also a sure fire way of securing instictive Republican opposition to any and all Obama foreign policy initiatives in any way at odds with those of the George W. Bush administration.
February 16, 2010, 9:24 pmG. May says:
I’ve often wondered about the European reaction when they realize that Obama’s changes to US foreign policy have been largely cosmetic. When you get past all the juvenile partisan sniping and really dig into the subject you find Obama is driven by forces largely beyond his control, as was his predecessor.
It’s good to see that one of my favorite blogs has picked up on this as well. Sadly, this thread will be hijacked by the usual trolls.
February 16, 2010, 9:26 pmBob from Ohio says:
Binding?
February 16, 2010, 9:43 pmElliot says:
Bush is looking better everyday as his policies are maintained. Bush led. Obama follows.
February 16, 2010, 10:06 pmlgm says:
When top Obama officials call the Geneva conventions “quaint” I’ll compare them to Bush. Until then, they are miles above.
As for Obama continuing illegal Bush practices, it’s harder to get mud off than to put it on.
February 16, 2010, 11:01 pmG. May says:
Well there’s a substantive difference in foreign policy!
Here come the trolls.
February 16, 2010, 11:48 pmSoronel Haetir says:
Have to agree with this one. Congress should pass enabling legislation for the treaty at issue in the consular access cases but that sure as hell shouldn’t be enough to make the ICJ a binding authority.
February 16, 2010, 11:58 pmJohn Bellinger on International Law in Bush Second Term and Obama Administration | Liberal Whoppers says:
[...] this link: John Bellinger on International Law in Bush Second Term and Obama Administration [...]
February 17, 2010, 12:01 amGuy says:
Depends what you mean by binding, all treaty obligations are binding, in the sense that the United States has a legal obligation to comply, but that doesn’t mean that they are self-executing, in the sense that they can be enforced directly in a court.
February 17, 2010, 1:18 amorca says:
Cutting and running from Iraq? Check
Funding abortions around the world? Check
Ended America’s phony posturing against Iran’s nukes? Check
etc., etc.
February 17, 2010, 1:43 amWednesday Highlights | Pseudo-Polymath says:
[...] Comparing Bush and Obama on international law. [...]
February 17, 2010, 9:31 amStones Cry Out - If they keep silent… » Things Heard: e106v3 says:
[...] Comparing Bush and Obama on international law. [...]
February 17, 2010, 9:39 amlgm says:
Among the worst things the Bush administration did was denigrating and flouting the Geneva convention treaties. It did the US no good to reject the rule of law categorically.
February 17, 2010, 10:57 amThorley Winston says:
I don’t think that the Bush administration “denigrat[ed] and flout[ed] the Geneva convention treaties” so much as correctly pointed out that they don’t apply to unlawful combatants who were neither parties to said treaties nor followed them in their own actions (e.g. sawing the heads off of captured soldiers and journalists).
February 17, 2010, 11:39 amThorley Winston says:
Also arguing that a particular law doesn’t apply is not the same as “reject[ing] the rule of law categorically.” If the Bush administration had said that we were no longer going to follow the Geneva Convention without withdrawing from the protocols, I would agree that they were rejecting the rule of that law. What they did do (correctly IMO) is to say that members of Al-Qaeda who were unlawful combatants were not covered by the Geneva Convention protocols and those rules do not apply to them.
February 17, 2010, 11:48 amorca says:
Makes perfect sense…unless you actually read the Geneva Conventions.
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August 19, 2010, 7:33 pm